Hynds v The Chief Executive, Department of Corrective Services
[2006] QSC 21
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Hynds v The Chief Executive, Department of Corrective Services[2006] QSC 21
- Add to List
Hynds v The Chief Executive, Department of Corrective Services[2006] QSC 21
Hynds v The Chief Executive, Department of Corrective Services[2006] QSC 21
SUPREME COURT OF QUEENSLAND
CITATION: | Hynds v The Chief Executive, Department of Corrective Services [2006] QSC 021 |
PARTIES: | GREGORY ALAN HYNDS |
FILE NO/S: | BS 6835/05 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court of Queensland |
DELIVERED ON: | 13 February 2006 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 2 February 2006 |
JUDGE: | McMurdo J |
ORDER: | The application is dismissed. |
CATCHWORDS: | ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEW OF DECISION – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – where the applicant who is a prisoner sought judicial review of a refusal to grant him remission – whether the respondent took into account relevant considerations in making the decision – whether the failure to participate in a sexual offenders treatment program was relevant ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEW OF DECISIONS – GROUNDS OF REVIEW – IRRELEVANT CONSIDERATIONS – whether respondent took into account irrelevant considerations – whether the circumstances of the applicant’s offences and lack of remorse at the time of sentencing were irrelevant Corrective Services Act 2000 (Qld), s 75(2)(a), s 75(2)(b), s 77, s 77(e) Prisoners (Interstate Transfer) Act 1982 (Qld), s 26 Sentencing Act 1989 (NSW), s 5(1)(b), s 5(4), s 6, s 9, s 15 |
COUNSEL: | The applicant appeared on his own behalf K Mellifont for the Respondent |
SOLICITORS: | The applicant appeared on his own behalf C W Lohe Crown Solicitor for the respondent |
- McMURDO J: The applicant is a prisoner who seeks judicial review of a refusal to grant him remission. It is common ground that he became entitled to be considered for remission as from 17 August 2005 when he still had two and a half years to serve. The decision maker accepted that the applicant had been a prisoner of good conduct and industry: Corrective Services Act 2000 (Qld), s 75(2)(b). Remission was refused because the decision maker was not satisfied that the applicant’s discharge posed no unacceptable risk to the community: s 75(2)(a).
- In 1989 in New South Wales the applicant was sentenced to various terms of imprisonment. On 1 December 1989, Matthews J sentenced him for attempted murder and other counts, including rape, all of which were committed on an occasion when he attacked the wife of a work colleague when she was alone in her home. The terms imposed, other than for attempted murder, commenced on 19 August 1988. The term for attempted murder was cumulative upon them, and commenced on 19 August 1992. Under the (now repealed) Sentencing Act 1989 (NSW) he was sentenced to a minimum term of eight years with an additional term of two and a half years to thereby commence on 18 August 2000. The effect of these orders was that he would be in custody until at least that date in 2000, after which he would be eligible for parole.[1] Upon expiry of the minimum term, his entitlement was to be considered for parole.[2]
- Whilst he was on bail for those offences, he committed further offences, including rape, in a premeditated attack upon another woman. On these matters he was sentenced by Judge Smyth QC in the District Court of New South Wales on 15 December 1989. The sentences for these matters were ordered to be served concurrently with each other, but cumulatively upon the sentences imposed by Matthews J. He imposed a sentence of five years upon each count but he did not expressly impose that as a minimum term and neither did he expressly impose an additional term. At the conclusion of his sentencing remarks, he said:
“In relation to each of the four offences I sentence you to five years’ penal servitude, each sentence to be concurrent with the other but cumulative upon the sentences already being served, that is, they are to date from 18 August 2000 and are to expire on 17 August 2005. I do not alter the additional term imposed by her Honour Justice Matthews. The additional term of two and a half years is to commence on 17 August 2005.”
- His Honour was not obliged to impose minimum and additional terms. By s 6 of that Act, a court could set instead a fixed term of imprisonment, having regard in particular to other sentences already imposed on the prisoner, although a court was required to give the reason for its decision to set a fixed term. On one view, his Honour imposed concurrent fixed terms of five years. On another view, he imposed minimum terms of five years and additional terms of two and a half years. On either view, the terms of five years which he ordered were to commence on 18 August 2000.[3] On the former (fixed term ) view, “the additional term of two and a half years” to which Smyth DCJ referred was the additional term imposed by Matthews J. On the latter view, it was an additional term imposed by him, which coincidentally was the same length as that imposed by Matthews J.
- In 1996 he was transferred to Queensland pursuant to the Prisoners (Interstate Transfer) Act 1982 (Qld). By s 26, his sentences are to be treated as having been imposed by a Queensland court. Remission is available under the Corrective Services Act 2000 only for a term of imprisonment which was imposed before the commencement of s 75 of that Act, and which the prisoner was serving as at that date. The commencement date of the section was 1 July 2001. If Smyth DCJ had ordered simply (fixed) five year terms, and had purported to postpone the additional term imposed by Matthews J so as to commence in 2005, it would follow that as at July 2001 the applicant was not serving any term for which he could now seek remission: he would have been serving those five year terms which have now expired. As the District Court had no power to vary the orders made by Matthews J,[4] he would have served all which he was required to serve, by August 2005 (so that a remission would be unnecessary). Upon the alternative view, which is that minimum terms of five years and additional terms of two and a half years were ordered, he has been serving those terms of (in total) seven and a half years from August 2000, and he became entitled to be considered for remission at the two thirds mark, i.e. in August 2005.[5] It is in this second sense that the orders of the District Court should be understood. That is how they were apparently understood by the New South Wales Court of Appeal which unanimously dismissed appeals from the sentences imposed in each court. In the reasons given by the decision maker, he took the view[6] that from August 2005, the applicant has been serving the (postponed) additional term imposed by Matthews J, but nevertheless considered that remission was available. I agree then that remission was available from 19 August 2005, but for different reasons than the decision maker had in mind.
- So the applicant has been in jail since August 1988 and has a full time release date in February 2007. It is common ground that the applicant became eligible for consideration for post-prison community based release at the end of the minimum terms imposed by Smyth DCJ which, as it happened, coincided with the date from which remission could be considered. But these proceedings concern only the decision to refuse him remission.
- The decision refusing remission was made by a delegate of the Chief Executive on 12 December 2005. On 20 December the delegate gave a statement of reasons. That statement appears to address the matters which by s 77 the decision maker was required to consider in assessing the relevant risk. They included the prisoner’s past offences, any patterns of offending and any relevant remarks made by the sentencing court.
- The offences for which he was sentenced in both the Supreme and District Courts of New South Wales were very serious crimes by any standard. In the matters before the Supreme Court, the applicant had decided to kill the complainant, after he had raped her, because of his concern that she might “dob him in”, and what then followed was described by Matthews J as a struggle of quite amazing violence and ferocity. The complainant was saved only by her husband walking into the house. The second offences, involving another complainant, occurred whilst he was on bail from the first matters. They were the result of what Smyth DCJ described as a careful and deliberate planning over a period of some days and they involved circumstances which his Honour described as very disturbing. In dismissing appeals from these sentences, Mahoney JA said that given the “extremely serious circumstances of the particular offences, the applicant really left the learned judges with little option but to impose sentences of the order that were imposed”, adding that no explanation had been given by the applicant, and nor was there a suggestion of real remorse.
- The decision maker discussed a psychologist’s report dated 15 June 2005. He noted that according to that report, the applicant had claimed to the psychologist that his offences were not of a sexual nature; instead the applicant had said that he was motivated by revenge because of a betrayal in the context of illegal drug activity. He further noted that the applicant had told this psychologist that he could not say that if faced with the same circumstances he would not act in the same way. He noted that in an earlier psychologist’s report (2002), the applicant is recorded as having said that he would “react in a similar manner if faced with the same situation again”.
- The decision maker referred to the applicant’s having completed certain programs including: the Violence Intervention Program, the Substance Abuse Core Program, the Anger Management Program, and the Cognitive Skills Program, as well as a Preparation for Transition Program. He noted that a report of his performance in one of those programs had said that there would be the possibility of the applicant’s experiencing the “righteous anger” which had motivated him to commit these offences, and that this remained “high”. But the decision maker referred also to favourable reports such as that upon his completion of The Preparation for Transition Program in 2003. Then the decision maker noted that the applicant had not yet participated in a Sex Offender Treatment Program, because the applicant had maintained he was innocent of his offences which were of a sexual nature, notwithstanding that he had pleaded guilty in the District Court to one count of sexual intercourse without consent and he had been convicted by a jury in the Supreme Court of another.
- The decision maker noted that the psychologist’s report of June 2005 identified risk factors which included “minimal victim empathy, externalisation of blame and minimisation of offending, problem solving skills and denial of sexual component of the offences”. He was concerned that the applicant had not properly addressed his offending behaviour and that this failure “might increase the risk to the community when compared with the risk posed by an offender committing offences of that kind who has addressed his/her offending behaviour”. He noted that in the same report the psychologist had assessed the applicant as a “low-moderate risk of reoffending” and that although the applicant had “sound release plans in place”, it was the psychologist’s view that “it would seem most prudent to enable him to gain access to structured, supervised release into the community rather than granting him remissions”.
- On the face of the decision maker’s reasons, there was a rational, if not compelling, basis for concluding as he did. The comparatively recent psychologist’s report identified some features of the applicant’s case, largely by reference to what he had said to the psychologist, which might found a concern that the applicant’s case had particular “risk factors” which overall could make the risk unacceptable. The decision maker was apparently strongly influenced by the psychologist’s recommendation of a supervised release rather than a grant of remission. But in that respect the decision maker was not misunderstanding the relevant question; rather he was identifying how the risk to the community might be unacceptable upon an unsupervised release, yet an acceptable risk under a program of post-prison community based release.
- The applicant, who argued his own case, filed written submissions and also made extensive oral submissions. Not surprisingly, in many respects his argument did not allow for the distinction between judicial review and a review upon the merits. He emphasised aspects of his case which were favourable to the grant of remission, such as his good conduct in prison, the absence of a criminal history apart from these offences, his classification as a low security prisoner since 2002, his completion of a number of programs in prison, his involvement in behavioural programs for other prisoners, the likely circumstances of his employment and accommodation upon release and some matters within the psychologist’s report of June 2005. In that last respect, he referred to the psychologist’s assessment, (according to some tests) of the likelihood of reoffending or level of risk as being low to moderate. And the psychologist had said that “recidivism research suggests that his risk of re-offending sexually is low and that his denial of the sexual portion of his offences does little to increase his risk level”. But she had concluded her report by saying that “with two and a half years until his fulltime discharge it would seem most prudent to enable him to gain access to structured, supervised release into the community rather than granting him remissions”.
- The evidence, including the psychologist’s report, did not compel the conclusion that the risk was unacceptable but nor did it compel the contrary conclusion. The decision was not unreasonable in the sense which is required for judicial review.
- Many of the applicant’s submissions complained that he has not progressed to an Open Custody facility despite some recommendations as early as 2001. Understandably, he feels that this has affected his prospects of obtaining a relatively early post prison community based release. But it is a complaint which does not bear upon this present application for judicial review.
- The applicant contends that the decision was reached essentially because the he has failed to participate in a Sexual Offenders Treatment Program. He says that this represents the application of a policy to refuse remission to a prisoner who has not participated. But that is not how the delegate’s reasons should be understood. The fact that he has not participated, and his denial of the characterisation of some of these offences as sexual in nature, were plainly relevant considerations. The delegate stated in his reasons that he was not refusing remission simply because of the applicant’s non participation in this program.
- A further complaint is that the delegate gave too much weight to the facts and circumstances of the offences and a lack of remorse at the time of sentencing. He went so far as to argue that these were irrelevant considerations and that the decision maker was in some way usurping the function of the sentencing court. This is related to another of his arguments, the effect of which is that at the end of the terms of five years, i.e. in August 2005, he had “an entitlement of certainty of release at (that) fixed point in time in his sentence”.[7] That submission is inconsistent with the Sentencing Act 1989 (NSW). Under that Act, his entitlement at the end of the minimum term and from the commencement of the additional term was to be considered for parole. By s 15 a prisoner eligible for release on parole was entitled to be released on parole only if a parole order was made and took effect. And by s 5 the additional term was that part of the term imposed during which the prisoner might be released on parole. As the applicant submits, s 26 of the Prisoners (Interstate Transfer) Act 1982 requires his sentences to be treated as if they had been imposed in Queensland by a court with power to do so including with such directions and associated directions and orders which the (interstate) court had made. But the applicant had no entitlement in New South Wales to be paroled; only an entitlement to be considered for parole at the end of his minimum term, and accordingly his rights on transfer to Queensland were no higher. And he does not suggest that by some law in New South Wales he was entitled to remission at the end of his minimum term.
- It may be accepted that, as the applicant submits, the decision maker relied heavily on the circumstances of the offences. They had to be taken into consideration.[8] It is said that he also heavily relied upon the lack of remorse at the time of sentencing. But undoubtedly it was a relevant consideration. It was relevant for the decision maker to consider whether the circumstances affecting the likelihood of further offending had changed, and if so in what respects, from those which existed at the time of the offending. The decision did not involve an undue concentration on the past without the relevant question, which is that of the present level of risk, being assessed.
- Ultimately then there is no ground for review of this decision to refuse the applicant remission. The application must be dismissed.
- I shall hear the parties as to costs.
Footnotes
[1] Section 5(1)(b)
[2] Section 15
[3] As required by s 9
[4] Section 12(2)
[5] Under the Sentencing Act 1989 (NSW) the minimum and additional terms comprised, for the purposes of any law, the term of the sentence of the court for the offence: s 5(4)
[6] Page 5 of his reasons
[7] Outline of submissions filed 25 January 2006, para 13
[8] Section 77(e)